IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION
CASE NO: 10-
BEE’S AUTO, INC. and
WAYNE E. WEATHERBEE,

Plaintiffs, PRELIMINARY INJUNCTION SOUGHT

vs.
THE CITY OF CLERMONT, FLORIDA,
Defendant.
_________________________________________/

VERIFIED COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

Preliminary Statement

1. Plaintiff WAYNE E. WEATHERBEE (“Weatherbee”) owns and

actively operates BEE’S AUTO, INC., in Clermont (“the City”), Lake County,

Florida. On approximately October 28, 2009, in an act of political protest,

Weatherbee posted twelve (12) signs on two parcels of property owned by the

Bee’s Auto, Inc. at 898 Montrose Street, within the City. Fourteen (14)

photographs of these signs are attached hereto as Plaintiffs’ Composite Exhibit

No. 1. All twelve (12) signs voice Weatherbee’s discontent with the City’s
official actions against him and his business in the City; all twelve (12) signs

protest and petition the City government for redress of grievances.

2. The signs call the reader’s attention to Plaintiffs’ opinion that the

City has harassed and intimidated them, has selectively enforced its laws against

them, and has committed false arrest. The signs are political speech that is

protected under the First Amendment to the United States Constitution.

3. Notwithstanding that the twelve (12) signs are protected political

speech, on December 22, 2009, the City’s Code Enforcement Board (“the Board”)

issued a citation to Bee’s Auto, charging that the signs were erected without

permits in violation of Clermont City Code Chapter 102-6. A true and correct

copy of the citation is attached hereto as Exhibit No. 2.

4. At an initial January 19, 2010 Board meeting, various members of

the Commission correctly opined that the signs were political speech not subject to

the City’s signage code, and the Board initially declined to find Bee’s Auto in

violation of the Code.

5. However, immediately following this declination of action, the

Board’s attorney reversed position and the City issued its “Findings of Fact,

Conclusion of Law and Order,” a true and correct copy of which is attached to this

Verified Complaint as Plaintiffs’ Exhibit No. 3. Unless Plaintiffs “timely correct

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the violation” by February 2, 2010, fines of $75.00 per day will accrue. Plaintiffs’

Exhibit No. 3.

6. The City has been on notice since at least 2007 that its ordinance

regulating political signs violates the First Amendment. In August 2007, the City

demanded that two Clermont residents remove a political campaign sign from

their lawn or obtain a permit and pay a fee for the sign. The ACLU of Florida sent

the City a “cease and desist” letter on behalf of the property owners and advised

the City that its signage code violated the First Amendment. The letter is attached

as Ex. 4.

7. Although in that instance the City relented and did not pursue code

violations for the campaign sign, the code remains unconstitutional and the City is

now using that same code against Plaintiffs to silence their political speech.

8. Plaintiff Wayne Weatherbee has standing to challenge the City’s

unlawful acts because he is the owner of Bee’s Auto, Inc.

9. As detailed below, the City’s signage code is unconstitutional on its

face and as applied to Plaintiffs. First, the code creates an impermissible content-

based distinction between types of political signs: those which “advertis[e] either a

candidate for public office or a political cause subject to election” and those, like

Plaintiffs’, which protest governmental acts and seek redress. For example, a sign

that reads “Vote for Crist for Senate” is a permissible temporary political sign, but

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a sign that reads “Impeach Crist” is an impermissible political sign, as it advertises

neither a candidate for public issue nor a ballot issue.

10. Furthermore, the code requires permits and/or imposes size and

location requirements for disfavored signs, including “temporary political signs,”

but exempts favored signs from the permitting process and/or size and location

requirements. The City thereby regulates speech based solely on its content,

without any compelling interest.

11. Plaintiffs sue the City for violation of their First Amendment rights

and respectfully request that this Court grant the declaratory and injunctive relief

outlined below. Plaintiffs are contemporaneously filing a Motion for Preliminary

Injunction and seek an expedited hearing on this matter.

Jurisdiction and Venue

12. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 for violation

of their First Amendment rights.

13. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and

1343(a)(3). Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202, and

injunctive relief pursuant to Fed. R. Civ. P. 65.

14. Venue is appropriate in this District and the Ocala Division, as the

Defendant is a municipality in Lake County, Florida.

Parties

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 15. Bee’s Auto, Inc. is a Florida Corporation with its principal place of

business in Clermont, Florida.

16. Wayne E. Weatherbee is the Owner and Corporate President of

Bee’s Auto, Inc.

17. The City of Clermont is a political subdivision of the State of Florida

organized under the laws of Florida.

Facts

18. As previously mentioned, the Plaintiffs established the twelve (12)

signs in question as a form of political protest and as a method of petitioning for

redress of grievances. See Plaintiffs’ Composite Exhibit No.1. Specifically,

Plaintiffs were protesting actions taken by the City that Weatherbee believes

violated his property ownership rights; constitutional rights; and constituted

improper governmental conduct – actions that impact both himself and potentially

others.

19. The signs, as identified through Plaintiffs’ Composite Exhibit No. 1,

were of varying sizes, each predominantly containing red lettering, outlined in

black ink, and include the following messages designed explicitly as protected

speech.

20. “6 Ft Wall Really? Jim – Dezoned Unlawfully.” This sign was

designed to express the Plaintiffs’ prolonged experiences in attempting to deal

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with the City’s Zoning Department. These experiences, involving several

arbitrary rule changes by City staff, resulted in substantial delays and great

expense to the Plaintiffs.

21. “Give Me Back My Driveway” This sign relates to the City’s

granting of a conditional permit to the predecessor owner of the property in

question. The sign protests the City’s elimination of the driveway that provided

access to the Plaintiffs’ automotive business, without providing any notice to the

Plaintiffs, and thus depriving him of any venue to challenge to the City’s

perceived unlawful action.

22. “Rooney’s Right – ACLU Where Are You,” refers to Rooney, a

Clermont Police Officer who was wrongfully targeted and charged with falsifying

documents. Plaintiffs supported Rooney’s position with this particular sign.

Rooney was subsequently vindicated. The rest of the sign is self-explanatory.

23. “In My Opinion Wayne Saunders ‘Took’ My Occ. License.”

Wayne Saunders is Clermont’s City Manager, who directed that the reissuance of

the preexisting occupational license be redirected from City staff directly to

himself. Saunders repeatedly and arbitrarily avoided the efforts of the predecessor

owner of Plaintiffs’ business from being able to renew this occupational license.

At the time, in 2003, Plaintiffs had been in negotiation to purchase the business;

through Weatherbee’s personal information and belief, the City also sought

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purchase of the business and land in question. The failure to reissue the

occupational license to date has deprived Plaintiffs of any and all use of the

property, and thus expansion of his business interests.

24. “Bring Back Cheatham – Where’s FDLE[?]” Cheatham is the

former Clermont Police Lieutenant who arrested Plaintiff Weatherbee.

Subsequently, Cheatham was decertified for failing to produce a valid high school

diploma. Cheatham was involved in the false arrest of Plaintiffs – designed

specifically as part of a perceived effort to drive the Plaintiffs out of business.

25. “Surprise, Surprise, Surprise Even Mayberry Had a Garage –

They Are OK with Adult Entertainment But Not With Automotive Uses?”

This message is Plaintiffs’ commentary on the City’s revising of its Code relating

to the licensing of adult entertainment establishments to bring it into compliance

with the First Amendment, and Plaintiffs’ protest of the City’s impermissible

disparate treatment of his automotive business.

26. “Intimidation/Harassment – Selective Law Enforcement – False

Arrests – False Documents – What’s Next? At Least They Haven’t Taken My

Freedom of Speech YET!” This sign, perhaps a little dated considering this

Complaint and Plaintiffs’ Motion for Preliminary Injunction, reflects Plaintiffs’

commentary on the long history of perceived abuse against him and his business

by City officials.

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 27. “It’s Been a Garage Since 1940 – Ask the City Manager What

Happened? What’s the Big Deal? Can He Make It Reappear as Fast as It

Disappeared?” This sign serves as Plaintiffs’ further comment regarding City

Manager Wayne Saunders’ perceived official abuse of power regarding his tactics

to deprive Plaintiffs of the lawful use of their business property.

28. “Shame on You ‘Dan’ – You Shouldn’t Listen to ‘Him’ – Why

Do You Think Guthery Quit? And Randy Story with a 18 Month

Resignation.” The message in this sign is directed to City Attorney Dan

Mantzaris, imploring him not to listen to the advice of City Manager Wayne

Saunders. “Guthery” was the previous City Attorney, who was not purportedly

subject to manipulation by City Manager Saunders. “Randy Story” was the

previous City Chief of Police who resigned his position following a Florida

Department of Law Enforcement (FDLE) investigation into Clermont Police

Department.

29. “Will the Real Chief of Police ‘Please’ Stand Up – Not the Guy

on the 3rd Floor.” This sign references the problems with consecutive City police

chiefs taking instruction directly from City Manager Wayne Saunders.

30. “The City Manager Has This All Messed Up – I Don’t Care Who

He Is – I’ll Deal with the Mayor From Now On!” This sign is another political

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commentary on the state of affairs within the City and the perceived problems

with its City Manager.

31. “27 Years in the Automotive Business and the City is Trying to

Turn Me Into a Sign Painter.” Read in context with the other eleven (11) signs,

this is simple, rhetorical, humorous commentary on how the City’s acts have

driven Plaintiffs to protest and request redress of grievances through the above-

mentioned signage.

32. The property on which the signs are posted is classified for zoning

purposes as “commercial” in the City’s Central Business District.

The City’s Ordinances

33. The City’s Signage Code is unconstitutional on its face and as

applied to Plaintiffs, as it requires permits for some forms of speech in signs and

exempts permits for other types of permits in signs, thereby impermissibly

favoring certain types of speech based on their content, without any compelling

interest.

34. Section 102-1 of the City’s Code (“Purpose and Intent of Chapter”)

provides:

The intent of this chapter is to ensure adequate means of

communication through signage while maintaining attractive
visual appearance within the city. By specifying criteria for all
signage as stated in this chapter, this chapter is intended to
serve the following purposes:

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 (1) Maintain the established suburban character of the city by
regulating all exterior signage in a manner which promotes low
profile signage of high quality design.

(2) Protect and maintain the visual integrity of roadway

corridors within the city by establishing a maximum amount of
signage on any one site to reduce visual clutter.

(3) Establish locations and setback for signage which are

designed to protect motorists from visual distractions,
obstructions and hazards.

(4) Enhance the appearance of the physical environment by

requiring that signage be designed as an integral architectural
feature of the site and structure which such signage is intended
to identify, and sited in a manner which is sensitive to the
existing natural environment.

(5) Provide for signage which satisfies the needs of the local
business community for visibility, identification and
communication.

(6) Establish procedures for the removal or replacement of

nonconforming signs, enforcement of these regulations,
maintenance of existing signs, and consideration of variances
and appeals.

35. Section 102-2 of the City’s code (“Definitions”) limits the definition

of a political sign as “a sign or poster advertising either a candidate for public

office or a political cause subject to election.”

36. Section 102-6 of the City’s code (“Sign Permit”) requires permits for

signs, as follows:

Required; application. It shall be unlawful for any person to

erect, alter, display, change or relocate any sign within the city,
except exempt signs, until after a permit therefor has been

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 issued by the administrative official or the established designee
thereof and a fee paid to the city. Application for a sign permit
shall be made by the owner of the premises or his appointed
agent on a form provided by the city prior to the erection or
placing of any sign proposed. Such application shall include
the following:

(1) The name and address of the owner of the property;

(2) The name and address of the sign company erecting the
sign;

(3) The street address or legal description of the property upon

which the proposed sign is to be located;

(4) The height, size and shape of the proposed sign;

(5) A plan, sketch, blueprint or similar presentation, drawn to

scale, showing all pertinent structural details of the proposed
sign;

(6) A site plan, sketch, blueprint or similar presentation, drawn

to scale, showing all pertinent information, verifying the
specific location of the proposed sign, and the height, size,
shape and location of existing signage on the premises.

(Emphasis added).

37. However, Section 102-7 (“Exempt Signs”) exempts from the

permitting process the following signs, and impose no limits on their size or

number:

The following signs are exempt from the permit requirements

of this chapter, provided they are not placed or constructed so
as to create a hazard of any kind. The following signs must still
meet applicable construction and electrical standards required
by city, state or other appropriate agency codes: . . .

(8) Legal notices and official instruments.

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 (9) Signs necessary to promote health, safety and general
welfare, and other regulatory, statutory, traffic control or
directional signs erected on public property as required by
governmental entities with permission as appropriate from the
city, the county, the state or the United States federal
government.
...
(16) Holiday lights and seasonal decorations displayed at
times when such lights and decorations are generally
considered appropriate.

(Emphasis added).

38. Temporary political signs are not listed among “Exempt Signs” and

are regulated by Section 102-18 of the City’s code (“Temporary Political Signs”),

which provides:

Temporary political signs shall be permitted throughout the

city subject to the following restrictions, limitations and
requirements and any other applicable requirements set forth in
this chapter:
(1) No political sign shall be erected or placed on city-owned
property or on any trees or utility poles.

(2) Any political sign that is erected or placed in the city shall
be removed within three days after any election or campaign to
which such sign pertains; provided, however, that a sign may
remain through any secondary primary or runoff election as to
any candidate who is subject thereto.

(3) The candidate whose sign is erected or placed on any

premises shall deposit with the city clerk, or cause to be
deposited by a designee thereof, a fee as adopted by resolution
of the city council and on file in the city clerk's office, which
sum shall be used to fund the cost of removal and disposition
of such signs by city employees if the signs are not removed
within the time limit set out in this section. A single deposit
shall be required for each candidate or political cause being
advertised.

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 (4) Political campaign signs shall conform to the following
requirements:

a. No sign shall be located nearer than 50 feet to

intersecting street rights-of-way.

b. A setback of five feet shall be required from all other

public rights-of-way.

c. A maximum size of four square feet shall be permitted

in residential zones.

d. A maximum size of 16 square feet shall be permitted in

commercial or industrial zones.

e. Location approval is required and shall be the joint

responsibility of the owner of the property upon which the
sign is placed and the candidate for whom the sign is
placed.

39. The City has created an impermissible content-based distinction

between types of political signs: those which “advertis[e] either a candidate for

public office or a political cause subject to election” and those, like Plaintiffs’,

which protest governmental acts and seek redress.

40. The City’s definition of “political signs” is impermissibly narrow.

41. The City’s regulation of the size, number and location of political

signs disfavors political speech while favoring other types of speech and

expression, such as “legal notices,” “signs necessary to promote health, safety and

general welfare, and other regulatory, statutory, traffic control or directional

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signs,” and “holiday lights and seasonal decorations” that do not require any type

of permitting or approval, and are not limited as to size, number or location.

42. Thus, holiday decorations do not require any permit; they have no

size, location or format restrictions, whether they are Fourth of July banners,

Christmas reindeer, Easter Bunnies, Veterans’ Day Flags, Martin Luther King Day

portraits or illuminated displays.

43. Plaintiffs’ signs are protected political speech, as methods by which

the Plaintiffs is expressing, at times through humor and throughout with opinion

and rhetoric, his strong disagreement with the City’s actions, especially as it has

directly impacted his business and personal interests. Yet, the City’s Code cloaks

them with less protection than a Valentine’s or St. Patrick’s Day display.

The City’s Order

44. Although the City initially and properly recognized that Plaintiffs’

signs are protected political speech, the City has ordered Plaintiffs’ to “timely

correct the violation” by removing or obtaining a permit for the signs by February

2, 2010. Plaintiff’s Exhibit No. 3.

45. Plaintiffs’ failure to remove the signs or obtain a permit will result in

fines of $75.00 per day as of February 2, 2010.

46. Plaintiffs have no plain, adequate or complete remedy at law to

redress the wrongs herein alleged.

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 47. Plaintiffs are now suffering and will continue to suffer irreparable

injury from Defendant’s acts, policies and practices unless they are granted the

relief sought by this action. Each day that Plaintiffs are threatened with ever-

growing fines for failing to “timely correct,” by removal or obtaining permits for

the protected speech at issue, Defendant denies Plaintiffs their Constitutional right

to freedom of expression and to petition the government for redress of grievances

and constitutes irreparable harm.

48. Plaintiffs face immediate threat of injury and are contemporaneously

moving for a Preliminary Injunction.

RELIEF SOUGHT

49. Defendant’s Signage Code, Section 102 of the Clermont Code of

Ordinances, is unconstitutional on its face and as applied to Plaintiffs because (a)

the Code’s definition of “political signs” is impermissibly narrow, (b) the code

creates an unconstitutional content-based distinction between types of political

signs, and (c) the Code regulates protected speech based solely on its content. The

City’s Signage Code cannot survive strict or even intermediate scrutiny.

50. Defendant’s actions deny Plaintiffs the right to engage in

constitutionally protected expressive activities.

51. Title 42 U.S.C. § 1983 provides a remedy for Defendant’s

unconstitutional actions.

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WHEREFORE, Plaintiffs demand judgment against Defendant for:

(a) Declaratory relief that Chapter 102 of the City’s Code of Ordinances, or

at a minimum, sections 102-6, 102-7, and 102-18 of that Code are

unconstitutional on their face and as applied to Plaintiffs;

(b) Declaratory relief that Defendant’s actions constitute a violation of

Plaintiffs’ rights under the First and Fourteenth Amendments to the

United States Constitution;

(c) Injunctive relief prohibiting Defendant from denying Plaintiffs the right

to engage in protected political speech on their its property by

displaying signs that protest the City’s actions and seek or petition for

governmental redress;

(d) Injunctive relief prohibiting Defendant from fining or compelling

Plaintiffs to remove the twelve (12) signs that protest the City’s actions

and seek or petition for governmental redress;

(e) Injunctive relief prohibiting Defendant from imposing and enforcing

fines previously imposed or proposed against the Plaintiffs;

(f) Attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

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Dated this 4th day of February 2010.

By:

___________________________
DEREK B. BRETT
The Brett Law Firm, P.A.
TRIAL COUNSEL
Fla. Bar No.: 0090750
20 North Orange Avenue Suite 700
Orlando, FL 32801
Phone: 407-928-6050
Fax: 407-429-3856
Cooperating Attorney for the American
Civil Liberties Union Foundation of
Florida, Inc.
derek@thebrettlawfirm.com

MARIA KAYANAN
Fla. Bar No.: 305601
mkayanan@aclufl.org
RANDALL C. MARSHALL
Fla. Bar No. 181765
rmarshall@aclufl.org
American Civil Liberties Union
Foundation of Florida, Inc.
4500 Biscayne Blvd. Suite 340
Miami, FL 33137
Phone: 786-363-2700
Fax: 786-363-3108

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 Verification by

WAYNE E. WEATHERBEE, PURSUANT TO 28 U.S.C. § 1746(2)

I, Wayne E. Weatherbee, declares pursuant to 28 U.S.C. § 1746 (2) that

the facts alleged in this complaint are true and correct, based on my
personal knowledge.

I DECLARE UNDER PENALTY OF PERJURY THAT THE

FOREGOING IS TRUE AND CORRECT.

EXECUTED IN CLERMONT, FLORIDA THIS ___ DAY OF

FEBRUARY 2010.

__________________________________
WAYNE E. WEATHERBEE

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